GABRIEL RIVERA and ALBA CORONA-PEREZ v. MICHAEL VENDITTO, JR.

Gabriel Rivera (Rivera) and Alba Corona-Perez (Corona-Perez) (collectively, Plaintiffs) initiated this action, pursuant to G. L. c. 240, §§ 1 – 5, challenging the validity of a May 19, 2011 sheriff’s sale of property located at 339 Atlantic Avenue in Marblehead (Locus), conducted on behalf of Defendant Michael Venditto, Jr. (Venditto).

In a seven-count complaint, Plaintiffs assert that 1) Venditto failed to provide sufficient notice of the public sale of Locus, as required by G. L. c. 236, § 28; 2) Venditto violated the homestead protections of G. L. c. 188; 3) Venditto did not provide sufficient notice as required under G. L. c. 236, generally; 4) Venditto failed to adhere to the affidavit component required by G. L. c. 186; 5) Plaintiffs hold rights to Locus superior to those of Venditto; 6) Venditto obtained a wrongful judgment for possession of Locus in the Northeast Housing Court; and 7) Venditto’s actions in engaging a sheriff to effectuate the attachment, execution and public sale of Locus violated Plaintiffs’ due process rights under the Fourteenth Amendment of the U.S. Constitution and their rights under the Twelfth and Thirtieth Amendments of the Massachusetts Declaration of Rights.

Venditto filed an Answer on May 24, 2012, asserting the following affirmative defenses: Plaintiffs’ failure to state a claim upon which relief can be granted, res judicata, unclean hands and laches. Venditto also filed a two-count counterclaim 1) seeking confirmation of the sheriff’s sale and writ of entry, and 2) alleging abuse of process. The case was before the court pursuant to the parties’ cross-motions for summary judgment, which were fully briefed by both parties and argued on March 26, 2014.

A decision of today’s date in favor of Defendant has issued. In accordance with that decision, it is hereby:

ADJUDGED and ORDERED that, under the principles of res judicata based on cases previously litigated between the parties in Middlesex Superior Court, Northeast Housing Court, and the Appeals Court, Plaintiffs are precluded from challenging Defendant Venditto’s title to Locus; and it is

ADJUDGED and ORDERED that Plaintiff Rivera failed to exercise his right of redemption under G. L. c. 236, §33 during the one-year statutory period which expired on May 19, 2012; and it is

ADJUDGED and ORDERED that by virtue of a sheriff’s deed dated May 19, 2011, recorded with the Southern Essex County Registry of Deeds in Book 30416, at Page 544, Defendant Michael Venditto, Jr. has the right of possession against Plaintiffs, Gabriel Rivera and Alba Corona-Perez, their heirs, devisees or legal representatives, free and clear from any claim or interest of said Plaintiffs in Locus,; and it is

ADJUDGED and ORDERED that Defendant Venditto is entitled to immediate possession of Locus; and it is further

ADJUDGED and ORDERED that Defendant Venditto’s counterclaim for abuse of process is dismissed without prejudice, due to the Land Court’s lack of subject matter jurisdiction over that count.